Homeland Insecurity

A licensed local cannabis distribution company is alleging that California Highway Patrol officers used the U.S. Department of Homeland Security to circumvent state and federal law in order to seize almost a quarter of a million dollars during a traffic stop last month.

Matthew Kumin, a San Francisco attorney representing Richard Barry and Brian Clemann, owners of the Eureka-based Wild Rivers Transport LLC, said he is putting together a class-action lawsuit seeking to bar the CHP from working with the federal government in order to facilitate the seizure of assets from companies operating in compliance with state law.

The incident happened the afternoon of Sept. 6. According to Kumin, Barry and Clemann were returning to Humboldt after a distribution run to Southern California in a 2007 Chevrolet pickup truck. At about 3:20 p.m., the pair were stopped on Interstate 5 in Fresno County by a CHP officer for a vehicle code violation — a "mud flap violation," according to them. After issuing a written warning, the officer sent the two men on their way. The same officer then stopped them again a couple of hours later and two counties to the north, in Stanislaus County, for an unspecified vehicle code violation, according to a CHP press release.

Barry and Clemann say they were upfront with the officer about their business and told him they were fully licensed and operating in compliance with state law, volunteering a binder with their state and local licenses to transport cannabis in California. The officer "disregarded" the information, according to Barry and Clemann, and began to search their vehicle, removing two locked safes from the truck and a pair of handguns.

When officers forced the safes open, they found $230,000 in cash. Cuffed, Barry and Clemann were transported to the Merced Area CHP office, where they allege they were ultimately detained for hours. While a CHP press release about the incident states "task force officers" were then asked to "handle the investigation," Barry and Clemann allege officers called in the U.S. Department of Homeland Security to step in to seize the cash and firearms.

Now if you're scratching your head wondering what homeland security has to do with a domestic cannabis-related seizure, it's a fair question.

The department did not return Journal calls seeking comment but Kumin believes CHP reached out to Homeland Security in an effort to circumvent state cannabis laws and what's known as the Rohrabacher-Blumenauer amendment, federal legislation passed in 2014 that prohibits the U.S. Department of Justice from using its budget to interfere with state laws allowing the use, distribution, possession or cultivation of cannabis.

Because California state law specifies that employees of licensed cannabis businesses acting in compliance with state law can't be arrested or prosecuted, or have their assets seized, Kumin said the CHP officers couldn't legally take any action against Barry and Clemann. Because of the Rohrabacher-Blumenauer amendment, the officers similarly couldn't look to the federal Drug Enforcement Agency or the U.S. Attorney's Office for help. But the Department of Homeland Security isn't part of the U.S. Department of Justice — it's a stand alone department with its own budget — meaning it isn't bound by the amendment and there's ostensibly nothing prohibiting it from getting involved.

The CHP says the case was referred to the Stanislaus County District Attorney's Office but — as the Journal went to press almost a month after the traffic stops — it had taken no action.

Kumin says he's filed a variety of claims — including with the CHP and Homeland Security — seeking the return of his clients' money. He says he's worried the case — and any similar actions taken against businesses acting in compliance with state law — will have a chilling effect on California's cannabis industry, which needs to be able to distribute products and proceeds without fear of federal interdiction.

As the federal claims and the promised class action lawsuit work their way through the system, it will be interesting to see if anyone steps forward to defend against them. That's a task that would normally fall to the U.S. Attorney's Office but — as the office is a part of the U.S. Department of Justice — the Rohrabacher-Blumenauer amendment may prevent its involvement.

"This is a good test case for us because we're going to see what absurd lengths the federal government will go to in order to defend its indefensible position on marijuana," Kumin says. "My clients want to be able to do this safely and with clear rules in place. We thought we had clear rules in place."

Thadeus Greenson is the Journal's news editor. Reach him at 442-1400, extension 321, or thad@northcoastjournal.com. Follow him on Twitter @thadeusgreenson.